PRATT, Justice.
This action is in the form of a petition for removal of administratrix and for letters of administration. The lower court found for the contestant, and by its decree revoked and cancelled letters of administration theretofore issued to the administratrix, Mildred Pilcher, who prosecutes an appeal to this court.
Mildred Pilcher was duly appointed administratrix of the estate of William Pilcher, deceased, as his surviving widow. In her petition for letters of administration she named as heirs, besides herself, three children of William Pilcher by a former marriage. During the course of administration, Lee Brown who was the son of Mabel Von Pilcher and William Pilcher, came to Mildred purporting to represent all the children of Mabel Von Pilcher and William Pilcher and insisted upon a settlement with her on behalf of the heirs. Under this settlement agreement Mildred paid him the sum of $3,000.00 and certain personal property belonging to the decedent. Mildred proceeded to administer the estate up to and including a petition for settlement of final account. Notices for petition for “Settlement of Final Account and Distribution of Estate” were duly mailed to the named heirs. Thereafter, the contestant, Mabel Von Pilcher, through her attorney filed an “Objection to
Final Account and Petition for Distribution” and also served and filed a petition for “Removal of Administratrix and for Letters of Administration.” No notice of this latter petition was given to the heirs.
The facts as revealed by the testimony and exhibits indicate that the deceased married Mabel Von Pilcher in Lyon County, Kansas in 1901. Thereafter they lived as husband and wife for several years at Hartford, Kansas, during which time six children were born to them, four of whom are now living. The parties separated in 1925. Thereafter the parties were in contact with each other to some extent, and as testified to by Mabel Von Pilcher on cross-examination, he told her he had divorced her. In 1926, apparently in reliance upon what the deceased told her regarding a divorce, Mabel Von Pilcher began living with one Hal F. Showers, ostensibly as his wife, although she denied at the trial that she was his wife.
The decedent and Mildred Pilcher were married June 21, 1941, at Logan, Utah. At that time decedent was fifty-nine years of age, and Mildred was nineteen. Mildred testified that decedent told her he had not been married, but that about one month after their marriage she discovered his prior marriage, at which time he assured her that he had secured a divorce. His explanation, as testified to by Mildred, was that he was afraid that if he told her before, she would not have married him.
For some time during the years 1942 and 1943, Mildred Pilcher and the deceased lived in California, and Mabel Von Pilcher and Hal F. Showers, holding themselves out as husband and wife, also lived in California, and the two families became fairly well acquainted, visiting each other at intervals, and living in close proximity to each other.
Mabel Von Pilcher testified that while the families were living in California, the decedent came to her and informed her that he had never divorced her. In addition, she testified that she had never divorced him, and had received no
papers in any divorce action begun by him. It is on this basis that she seeks to sustain her petition for removal of administratrix, on the ground that she, not Mildred, is the widow of the deceased, and as such entitled to letters of administration.
The appellant presents several assignments of error, some of which relate to the acquisition and repair of certain properties, and are clearly not within the issues of this contest. Of the other issues, we believe the issue of estoppel and that raised as to burden of proof are determinative of this appeal.
Before proceeding however to these matters, we have before us preliminarily a matter raised by the appellant relative to the admission of certain testimony given by Mabel Von Pilcher. She testified to a conversation held with the decedent in 1943 wherein he indicated to her that he had never divorced her. It is contended by the appellant that this testimony should not have been admitted, being a violation of Section 104-49-2, U. C. A. 1943, frequently spoken of as the “Dead Man Statute.” This was not however an action against the estate in any sense. The contest is to determine the respective rights of the parties in relation to the estate. It was not error under the cited statute to allow the contestant to testify as she did. See
Miller
V.
Livingstone,
31 Utah 415, 88 P. 338, and an article by Mr. Justice James H. Wolfe, 13 Rocky Mountain Law Review 282, (June, 1941) reprinted in the Utah Bar Bulletin, Vol. XI, Nos. 7 & 8, July-August, 1941, discussing this problem.
Section 102-4-1, U. C. A. 1943, provides the order of priority as to parties who are entitled to administration of the estate of a decedent. Sec. 102-4-3, U. C. A. 1943, provides that letters must be granted to any interested applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear within three months after the
death of the decedent and claim the issuance of letters to themselves. In the case
In re Smith’s Estate,
85 Utah 606, 40 P. 2d 180, this court held that after the three month period has expired the person who was entitled to preference has thereafter no greater right to administer than does any other competent qualified person. This being so, it appears that Mabel Von Pilcher does not stand in a position where she herself would be entitled as of right to lay claim to the administration of the estate, since admittedly more than five months had expired since the death of William Pilcher before any action was taken by her.
Aside from this however, the fact that Mabel Von Pilcher admitted knowing of the death of William Pilcher soon after it occurred; the fact that she lived with her daughter, Bernice Shaffer, who received notice of the application by Mildred Pilcher for letters of administration, and thus we may safely assume knew of Mildred’s petition; that she also admitted some knowledge of the settlement agreement proposed by her son, Lee Brown, and actually put into effect between Lee and Mildred, as administratrix (Mabel Von Pilcher was present in the home of her daughter Bernice Shaffer when Lee called Bernice after having effected the settlement with Mildred) ; and the fact that she stood by while Mildred administered the estate up to a petition for final distribution, constitute a basis for holding that she has thus acquiesced in the administration of the estate, by Mildred, and she may not now come forward and raise the question of Mildred’s capacity to administer. 21 Am. Jur. 444, Sec. 119, states the rule as follows:
“* * * one entitled to administration, who stands by with knowledge of the application of another for appointment and the fact that he is administering upon an estate, is estopped to assert his prior right and claim the appointment made to be invalid.”
A similar rule is expressed in 33 C. J. S., Executors and Administrators, § 72, page 997, as follows:
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PRATT, Justice.
This action is in the form of a petition for removal of administratrix and for letters of administration. The lower court found for the contestant, and by its decree revoked and cancelled letters of administration theretofore issued to the administratrix, Mildred Pilcher, who prosecutes an appeal to this court.
Mildred Pilcher was duly appointed administratrix of the estate of William Pilcher, deceased, as his surviving widow. In her petition for letters of administration she named as heirs, besides herself, three children of William Pilcher by a former marriage. During the course of administration, Lee Brown who was the son of Mabel Von Pilcher and William Pilcher, came to Mildred purporting to represent all the children of Mabel Von Pilcher and William Pilcher and insisted upon a settlement with her on behalf of the heirs. Under this settlement agreement Mildred paid him the sum of $3,000.00 and certain personal property belonging to the decedent. Mildred proceeded to administer the estate up to and including a petition for settlement of final account. Notices for petition for “Settlement of Final Account and Distribution of Estate” were duly mailed to the named heirs. Thereafter, the contestant, Mabel Von Pilcher, through her attorney filed an “Objection to
Final Account and Petition for Distribution” and also served and filed a petition for “Removal of Administratrix and for Letters of Administration.” No notice of this latter petition was given to the heirs.
The facts as revealed by the testimony and exhibits indicate that the deceased married Mabel Von Pilcher in Lyon County, Kansas in 1901. Thereafter they lived as husband and wife for several years at Hartford, Kansas, during which time six children were born to them, four of whom are now living. The parties separated in 1925. Thereafter the parties were in contact with each other to some extent, and as testified to by Mabel Von Pilcher on cross-examination, he told her he had divorced her. In 1926, apparently in reliance upon what the deceased told her regarding a divorce, Mabel Von Pilcher began living with one Hal F. Showers, ostensibly as his wife, although she denied at the trial that she was his wife.
The decedent and Mildred Pilcher were married June 21, 1941, at Logan, Utah. At that time decedent was fifty-nine years of age, and Mildred was nineteen. Mildred testified that decedent told her he had not been married, but that about one month after their marriage she discovered his prior marriage, at which time he assured her that he had secured a divorce. His explanation, as testified to by Mildred, was that he was afraid that if he told her before, she would not have married him.
For some time during the years 1942 and 1943, Mildred Pilcher and the deceased lived in California, and Mabel Von Pilcher and Hal F. Showers, holding themselves out as husband and wife, also lived in California, and the two families became fairly well acquainted, visiting each other at intervals, and living in close proximity to each other.
Mabel Von Pilcher testified that while the families were living in California, the decedent came to her and informed her that he had never divorced her. In addition, she testified that she had never divorced him, and had received no
papers in any divorce action begun by him. It is on this basis that she seeks to sustain her petition for removal of administratrix, on the ground that she, not Mildred, is the widow of the deceased, and as such entitled to letters of administration.
The appellant presents several assignments of error, some of which relate to the acquisition and repair of certain properties, and are clearly not within the issues of this contest. Of the other issues, we believe the issue of estoppel and that raised as to burden of proof are determinative of this appeal.
Before proceeding however to these matters, we have before us preliminarily a matter raised by the appellant relative to the admission of certain testimony given by Mabel Von Pilcher. She testified to a conversation held with the decedent in 1943 wherein he indicated to her that he had never divorced her. It is contended by the appellant that this testimony should not have been admitted, being a violation of Section 104-49-2, U. C. A. 1943, frequently spoken of as the “Dead Man Statute.” This was not however an action against the estate in any sense. The contest is to determine the respective rights of the parties in relation to the estate. It was not error under the cited statute to allow the contestant to testify as she did. See
Miller
V.
Livingstone,
31 Utah 415, 88 P. 338, and an article by Mr. Justice James H. Wolfe, 13 Rocky Mountain Law Review 282, (June, 1941) reprinted in the Utah Bar Bulletin, Vol. XI, Nos. 7 & 8, July-August, 1941, discussing this problem.
Section 102-4-1, U. C. A. 1943, provides the order of priority as to parties who are entitled to administration of the estate of a decedent. Sec. 102-4-3, U. C. A. 1943, provides that letters must be granted to any interested applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear within three months after the
death of the decedent and claim the issuance of letters to themselves. In the case
In re Smith’s Estate,
85 Utah 606, 40 P. 2d 180, this court held that after the three month period has expired the person who was entitled to preference has thereafter no greater right to administer than does any other competent qualified person. This being so, it appears that Mabel Von Pilcher does not stand in a position where she herself would be entitled as of right to lay claim to the administration of the estate, since admittedly more than five months had expired since the death of William Pilcher before any action was taken by her.
Aside from this however, the fact that Mabel Von Pilcher admitted knowing of the death of William Pilcher soon after it occurred; the fact that she lived with her daughter, Bernice Shaffer, who received notice of the application by Mildred Pilcher for letters of administration, and thus we may safely assume knew of Mildred’s petition; that she also admitted some knowledge of the settlement agreement proposed by her son, Lee Brown, and actually put into effect between Lee and Mildred, as administratrix (Mabel Von Pilcher was present in the home of her daughter Bernice Shaffer when Lee called Bernice after having effected the settlement with Mildred) ; and the fact that she stood by while Mildred administered the estate up to a petition for final distribution, constitute a basis for holding that she has thus acquiesced in the administration of the estate, by Mildred, and she may not now come forward and raise the question of Mildred’s capacity to administer. 21 Am. Jur. 444, Sec. 119, states the rule as follows:
“* * * one entitled to administration, who stands by with knowledge of the application of another for appointment and the fact that he is administering upon an estate, is estopped to assert his prior right and claim the appointment made to be invalid.”
A similar rule is expressed in 33 C. J. S., Executors and Administrators, § 72, page 997, as follows:
“Heirs or next of kin, by acquiescing in the appointment of an administrator, may be estopped to question the propriety of making the appointment.”
See also
Manning
v.
Leighton,
65 Vt. 84, 26 A. 258, 24 L. R. A., 684, and
Mitchel
v.
Dreher,
150 S. C. 125, 147 S. E. 646, to the same effect.
At the conclusion of the arguments, after testimony was in, the court had this to say:
“I think the question that’s before the court is whether or not the administratrix of the estate of William Pilcher is entitled to letters of administration, whether she’s the heir of William Pilcher. Now as I understand the law, when a contest is filed such as a contest in this case where it alleges that the administratrix is not the widow of the deceased and is not an heir at law, then I think the burden is upon the administratrix to show that first. In this case there is no doubt, there can’t be any doubt of the marriage between Mr. Pilcher and his first wife, the contestant. That has been proved by her own evidence, and if that relationship was once established, then I believe that the burden is upon the purported administratrix to show that that relationship has terminated, that she is in fact the widow of the deceased and an heir at law.”
From this excerpt it is apparent that the trial court regarded the administratrix as having the burden to prove a divorce between the decedent and Mabel Von Pilcher. In support of this proposition, respondent cites the case
In re Peters’ Estate,
1928, 73 Colo. 271, 215 P. 128, 33 A. L. R. 24, which case held that the burden of proving a marriage is on the person seeking to qualify as administratrix, and that this same burden is upon one whose appointment as administratrix is challenged. While this may well be a proper rule, it is inapplicable to the present case. The ad-ministratrix in this instance has established a marriage with the deceased, and by virtue thereof has been appointed administratrix. The contest is not to determine whether there ever was a marriage between Mildred and William Pilcher, but rather to determine if that marriage was valid.
The fact situation presented to us by this appeal is similar to that in the case
In re Brugnoli’s Estate,
1925, 97 N. J. Eq.
349, 127 A. 165, 2 N. J. Mise. 422, where Elvira Brugnoli was granted letters of administration on the estate of Ormisda Brugnoli, deceased, as his surviving widow. The order granting letters was appealed from on the ground that the marriage was not valid, Elvira having a husband living at the time of her marriage to Brugnoli. The court held that the presumption was in favor of the validity of the second marriage, and the burden of proof to establish the invalidity of the marriage between Eliva and the deceased was on the party asserting it. This is a rule which has become well established in our law, together with the reasons therefor. Other cases so holding include the following:
In re St. Clair’s Estate,
1934, 46 Wyo. 446, 28 P. 2d 894;
In re De Force’s Estate,
1926, 119 Or. 556, 249 P. 632;
In re Jubala’s Estate,
1936, 40 N. M. 312, 59 P. 2d 356;
In re Rash’s Estate,
1898, 21 Mont. 170, 53 P. 312, 69 Am. St. Rep. 649;
Sam
v.
Sam,
1935, 172 Okl. 342, 45 P. 2d 462;
Hatfield
v.
United States,
2 Cir., 1942, 127 F. 2d 575; J.
J. Cater Furniture Co.
v.
Banks,
1943, 152 Fla. 377, 11 So. 2d 776;
Nicholas
v.
Idaho Power Co.,
1942, 63 Idaho 675, 125 P. 2d 321. Other cases to like effect will be cited later in connection with the question of the proof necessary to rebut the presumption thus arising. The rule has been recognized in Utah in the case
In re Wo-Gin-Up’s Estate,
57 Utah 29, 192 P. 267, in which case however, the presumption was held not to apply since the divorce in that case was admitted, but held insufficient to constitute a divorce.
We hold that where, as here, the first wife attacks the validity of a marriage by her husband to a second wife, then the burden of proof rests with the first wife, after proving her marriage, to rebut the presumption of divorce arising from the proof of the second marriage. In view of the many years that elapsed during which contestant and deceased lived apart and with others in family relationship, this case is particularly strong evidence of the merit of the rule.
The burden of proof then was erroneously placed upon the administratrix. However, the respondent contends that even if this is true, the respondent has in fact sustained the burden of proof. If this is so, then the error of the lower court in misconceiving the burden of proof is not prejudicial. We look then to the evidence adduced to determine whether the respondent has in fact sustained the burden which properly should have been hers.
Mable Von Pilcher by her testimony indicated at least three states in which William Pilcher may have lived after leaving her and before he married Mildred — a period of sixteen years. Those states are Colorado, Montana and Utah. There may well have been others, although she indicates that she was more or less in contact with him during this time. It is possible that Pilcher may have divorced her in any one of those states, and either she did not get notice thereof by reason of the fact that she also moved about considerable and such notice may not have reached her if mailed, or by reason of the fact that he may have obtained a divorce after publication of summons. Mildred, the administratrix, testified that Pilcher told her he divorced his first wife in Colorado. This is a matter which may well be taken into account, in determining, under a proper theory of the burden of proof, whether or not that burden has been sustained. Mabel testified that he told her in 1943 that he had not divorced her. She testified that she did not at any time receive papers in connection with a divorce action started by William Pilcher, and that she had never started divorce proceedings against William Pilcher. Against this is testimony elicited from her on cross-examination that he told her many years earlier in Billings, Montana that he had divorced her, and testimony by Mildred that he told her that he had divorced his first wife.
The cases are numerous which hold that a mere declaration by the first wife that she had not obtained a divorce
and that she had never been served with papers in a divorce action is not sufficient to rebut the presumption in favor of the validity of the second marriage.
Kolombatovich
v.
Magna Coffer Co.,
1934, Ariz. 30 P. 2d 832;
Sanders
v.
Sanders,
1938, Ariz., 79 P. 2d 523;
In re Borneman’s Estate,
1939, 35 Cal. App. 2d 455, 96 P. 2d 182;
Marsh
v.
Marsh,
1926, 79 Cal. App. 560, 250 P. 411;
Everett
v.
Standard Accident Ins. Co.,
1920, 45 Cal. App. 332, 187 P.
996; Griggs
IV.
Pullman Co.,
1931, Mo. App., 40 S. W. 2d 463;
Holman
v.
Holman,
1926, Tex. Com. App., 288 S. W. 413;
Pittinger
v.
Pittinger,
1901, 28 Colo. 308, 64 P. 195. See also
Young
v.
Young,
1918, 213 Ill. App. 402;
Lathan
v.
Lathan,
1928, 175 Ark. 1037, 1 S. W. 2d 67;
Hale
v.
Hale,
1913, 40 Okl. 101, 135 P. 1143;
Smith
v.
Smith,
1942, 169 Or. 650, 131 P. 2d 447. Very little, if any, weight is added to the contestant’s testimony by the assertion that William Pilcher told her in 1943 that he had not divorced her. The testimony is uncorroborated and contrary to that expressed by her actions after the conversation had allegedly taken place. She admitted on cross-examination that he had previously told her that he had divorced her, and Mildred also had testified to this effect. The conduct of the first wife after hearing this startling revelation, as indicated by her testimony and that of Mildred, lends little credence to her story. She continued to live with Showers as before, and continued to associate with Mildred and William Pilcher on the same terms as before. We should scarcely be justified in holding that one such isolated bit of testimony, subject to the imperfections noted amounts to sustaining the burden of proof to overcome a presumption which has been given such strong force and effect in our legal system. The following quotations serve to indicate the strength given to this presumption, over and above that ordinarily given a presumption:
From
Griggs
v.
Pullman Co.,
1931, Mo. App., 40 S. W. 2d 463, 464:
“When a second marriage is shown, it is clothed with every presumption of validity. The law presumes innocence, not guilt; moral
ity, not immorality; marriage, not concubinage. If the validity of the second marriage is attacked, the burden is on the attacking party to prove its invalidity, and if, in assuming this burden, which the law demands, it becomes necessary to prove a negative, he must do so. The presumption in favor of the validity of the second marriage is not to be lightly repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory, and conclusive $ * *
99
From
Smith
v.
Smith,
1942, 169 Or. 650, 131 P. 2d 447:
“Plaintiffs, in challenging the validity of their father’s second marriage, have the burden of proof. There is a strong presumption that such marriage is valid. Indeed, it is one of the strongest disputable presumptions known in law. * * *”
From
Holman
v.
Holman,
1926, Tex. Comp. App., 288 S. W. 413, 414:
“Whenever a marriage is assailed as being invalid on account of a prior marriage having been contracted by one of the parties to the assailed marriage, such prior marriage is presumed to have been dissolved before the second marriage was consummated. [Citing authorities] This presumption in favor of the validity of the second marriage must prevail, unless rebutted by evidence which negatives the effective operation of every possible means by which a dissolution of such prior marriage could have been effected.”
Other cases take the view that production of records or testimony of persons having examined the records in some of the places where the other spouse was known to have established residence is not enough to overcome the presumption, absent a showing that these were the only places such spouse established sufficient residence so as to enable him or her to secure a divorce.
In re Bomeman’s Estate,
supra;
Everett
v.
Standard Accident Ins. Co.,
supra;
Young
v.
Young,
supra;
Hale
v.
Hale,
supra.
The trial court erred in ruling that the burden of proof was on the administratrix and consequently in ruling that she had failed to sustain that burden. An examination of the evidence fails to reveal that the contestant has in fact sustained the burden of proof which should have been
imposed upon her in any case. Possibly under a proper theory of the burden of proof she could have done so. The findings of fact so far as they relate to the issues of surviving widow and heirship at law and the conclusions of law based thereon must be held to be in error. In view of our holding that Mabel Von Pilcher is estopped to contest the appointment of Mildred Pilcher as administratrix, it would not ordinarily have been necessary for this court to go into the matter of burden of proof. However, in view of the rights which may otherwise be affected, and the “Objection to Final Account and Petition for Distribution of Estate” that was filed, we are constrained to indicate the error of the lower court in this regard.
For these reasons, the judgment of the lower court is set aside, and the case remanded with directions to dismiss the “Petition for Removal of Administratrix and for Letters of Administration,” and for further proceedings not inconsistent with this opinion. Costs to the appellant.
McDONOUGH, C. J., and WOLFE, and LATIMER, J., concur.